STATE OF CALIFORNIA - NATURAL RESOURCES AGENCY ARNOLD SCHWARZENEGGER, Governor

CALIFORNIA COASTAL COMMISSION South Coast Area Office 200 Oceangate, Suite 1000 Long Beach, CA 90802-4302 (562) 590-5071

Filed: July 2, 20099 49th Day: August 20, 2009 180th Day: December 29, 2009 270th Day: March 29, 2010 Staff: Fernie Sy-LB Staff Report: January 20, 2009 Hearing Date: February 10-12, 2010 Commission Action:

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STAFF REPORT: REGULAR CALENDAR APPLICATION NUMBER: 5-09-128 APPLICANT: City of Newport Beach PROJECT LOCATION: China Cove Beach, City of Newport Beach, County of Orange PROJECT DESCRIPTION: Installation of two poles to accommodate a volleyball net. In

addition, remove approximately 100 square feet of invasive, non-native ice plant and leveling of the sand to accommodate the volleyball court (approximately 25-30 cubic yards).

SUMMARY OF STAFF RECOMMENDATION: The primary issues addressed in the staff report are water quality, and public access. The applicant proposes to install two poles to accommodate a volleyball net in China Cove Beach. Staff is recommending APPROVAL of the proposed project subject to THREE (3) SPECIAL CONDITIONS requiring: 1) adherence to timing of construction and public access; 2) submittal of construction staging plans; and 3) adherence to construction best management practices. Section 30600(c) of the Coastal Act provides for the issuance of coastal development permits directly by the Commission in regions where the local government having jurisdiction does not have a certified Local Coastal Program. The City of Newport Beach only has a certified Land Use Plan and has not exercised the options provided in 30600(b) or 30600.5 to issue its own permits. Therefore, the Coastal Commission is the permit issuing entity and the standard of review is Chapter 3 of the Coastal Act. The certified Land Use Plan may be used for guidance. STAFF NOTE: Staff has received two letters (Exhibit #3) from the public supporting a volleyball court at China Cove Beach. In addition, a letter (Exhibit #4) has been received in opposition to the volleyball court. The opponent claims that the size of the beach is inadequate and not appropriate for a volleyball court because of the adjacent homes and that speeding balls from the court pose a danger to people at the beach. However, the volleyball court will actually be located farther away from the adjacent homes than a court that previously existed at this beach and thus will have less impacts upon the adjacent homeowners. In addition, the planned location of the volleyball court at the northerly part of the beach adjacent to the Marine Institute building will also minimize any adverse impacts to the public from misguided balls since it would be placed in an area that is not typically used by beach goers because of existing non-native vegetation (to be removed) that occupies the area.

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LOCAL APPROVALS: Approval in Concept No. 0884-2009 from the City of Newport Beach Planning Department dated June 24, 2009 and approval from the City of Newport Beach Parks, Beaches & Recreation Commission dated June 2, 2009. LIST OF EXHIBITS: 1. Vicinity Map 2. Site Plan 3. Letters supporting the volleyball court 4. Letter opposing the volleyball court I. STAFF RECOMMENDATION, MOTION AND

RESOLUTION OF APPROVAL STAFF RECOMMENDATION: Staff recommends that the Commission adopt the following motion and resolution: MOTION: “I move that the Commission approve Coastal Development Permit No. 5-09-128 pursuant to the staff recommendation.” Staff recommends a YES vote. Passage of this motion will result in approval of the permit as conditioned and adoption of the following resolution and findings. The motion passes only by affirmative vote of a majority of the Commissioners present. The Commission hereby GRANTS a coastal development permit for the proposed development and adopts the findings set forth below on grounds that the development as conditioned will be in conformity with the policies of Chapter 3 of the Coastal Act and will not prejudice the ability of the local government having jurisdiction over the area to prepare a Local Coastal Program conforming to the provisions of Chapter 3. Approval of the permit complies with the California Environmental Quality Act because either 1) feasible mitigation measures and/or alternatives have been incorporated to substantially lessen any significant adverse effects of the development on the environment, or 2) there are no further feasible mitigation measures or alternatives that would substantially lessen any significant adverse impacts of the development on the environment. II. STANDARD CONDITIONS 1. Notice of Receipt and Acknowledgment. The permit is not valid and development shall

not commence until a copy of the permit, signed by the permittees or authorized agent, acknowledging receipt of the permit and acceptance of the terms and conditions, is returned to the Commission office.

2. Expiration. If development has not commenced, the permit will expire two years from

the date this permit is reported to the Commission. Development shall be pursued in a

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diligent manner and completed in a reasonable period of time. Application for extension of the permit must be made prior to the expiration date.

3. Interpretation. Any questions of intent or interpretation of any condition will be resolved

by the Executive Director or the Commission. 4. Assignment. The permit may be assigned to any qualified person, provided assignee

files with the Commission an affidavit accepting all terms and conditions of the permit. 5. Terms and Conditions Run with the Land. These terms and conditions shall be

perpetual, and it is the intention of the Commission and the permittees to bind all future owners and possessors of the subject property to the terms and conditions.

III. SPECIAL CONDITIONS: 1. TIMING OF CONSTRUCTION By acceptance of this permit, the applicant agrees to minimize adverse impacts to public use of China Cove Beach resulting from construction activities approved pursuant to Coastal Development Permit No. 5-09-128, as required below: No construction shall occur during the “peak use” beach season, defined as the period starting the day before the Memorial Day weekend and ending the day after the Labor Day weekend of any year. 2. CONSTRUCTION STAGING PLANS

A. PRIOR TO ISSUANCE OF THE COASTAL DEVELOPMENT PERMIT, the permittee shall submit a final plan for the review and approval of the Executive Director which indicates that the construction staging area(s) and construction corridor(s) will minimize public access impacts to China Cove Beach.

(1) The plan shall demonstrate that:

(a) Construction equipment, materials or activity shall not occur

outside the staging area and construction corridor identified on the site plan required by this condition; and

(b) Construction equipment, materials, or activity shall not be placed

on the sandy beach outside of the immediate construction zone or grass area; and

(c) The construction staging area will gradually be reduced as less

materials and equipment are necessary; and (d) The construction access route will only be intermittently closed for

transport of equipment and materials. When not in use for transportation of equipment and materials, it will be made available for undisrupted public access.

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(2) The plan shall include, at a minimum, the following components:

(a) A site plan that depicts:

1. limits of the staging area(s); 2. construction corridor(s); 3. construction site; 4. location of construction fencing and temporary job trailers

with respect to the existing parking lot, day use area and the sandy beach.

B. The permittee shall undertake development in accordance with the approved

final plans. Any proposed changes to the approved final plans shall be reported to the Executive Director. No changes to the approved final plans shall occur without a Commission amendment to this coastal development permit unless the Executive Director determines that no amendment is required.

3. CONSTRUCTION BEST MANAGEMENT PRACTICES

A. The permittee shall comply with the following construction-related requirements:

(1) No construction materials, debris, or waste shall be placed or stored

where it may be subject to wave, wind, rain, or tidal erosion and dispersion;

(2) Any and all debris resulting from construction activities shall be removed

from the project site within 24 hours of completion of the project; (3) Construction debris and sediment shall be removed from construction

areas each day that construction occurs to prevent the accumulation of sediment and other debris which may be discharged into coastal waters;

(4) Erosion control/sedimentation Best Management Practices (BMP’s) shall

be used to control dust and sedimentation impacts to coastal waters during construction. BMP’s shall include, but are not limited to: placement of sand bags around drainage inlets to prevent runoff/sediment transport into coastal waters; and

(5) All construction materials, excluding lumber, shall be covered and

enclosed on all sides, and as far away from a storm drain inlet and receiving waters as possible.

B. Best Management Practices (BMP’s) designed to prevent spillage and/or runoff

of construction-related materials, sediment, or contaminants associated with construction activity shall be implemented prior to the on-set of such activity. Selected BMP’s shall be maintained in a functional condition throughout the duration of the project. Such measures shall be used during construction: (1) The applicant shall ensure the proper handling, storage, and application

of petroleum products and other construction materials. These shall

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include a designated fueling and vehicle maintenance area with appropriate berms and protection to prevent any spillage of gasoline or related petroleum products or contact with runoff. It shall be located as far away from the receiving waters and storm drain inlets as possible;

(2) The applicant shall develop and implement spill prevention and control measures;

(3) The applicant shall maintain and wash equipment and machinery in

confined areas specifically designed to control runoff. Thinners or solvents shall not be discharged into sanitary or storm sewer systems. Washout from concrete trucks shall be disposed of at a location not subject to runoff and more than 50 feet away from a stormdrain, open ditch or surface water; and

(4) The applicant shall provide adequate disposal facilities for solid waste,

including excess concrete, produced during construction. IV. FINDINGS AND DECLARATIONS: The Commission hereby finds and declares: A. PROJECT LOCATION AND DESCRIPTION The project site is China Cove Beach in Corona Del Mar (Newport Beach), Orange County (Exhibits #1-2). The usable sand beach at China Cove is approximately 150-feet in length from the waterline at its maximum distance and approximately 92-feet across. North of the project site is a Marine Institute building, East and South of the project site are residential homes and West of the site is the beach and Newport Bay. The proposed project involves the installation of a beach sand volleyball court (30-feet x 60-feet) including two 8-foot high poles to accommodate a volleyball net (Exhibit #2). The net would be provided by the players. The project also includes removal of approximately 100 square feet of invasive, non-native ice plant and leveling of the sand to accommodate the volleyball court (approximately 25-30 cubic yards). No other vegetation will be impacted by the proposed court installation. It should be noted that some of the non-native vegetation proposed to be removed under this application was recently removed by an individual that is not known to be associated with this application. That vegetation removal occurred without benefit of any coastal permit and without the permission of the City. The City has characterized the installation of this volleyball court as a ‘relocation’; however, the court to be ‘relocated’ was never approved by any coastal permit and was unpermitted. The pre-existing unpermitted court had been on this beach since the early 1980’s. It was located adjacent to several homes along the back of the beach. The court poles recently broke and were no longer usable so they were removed. The local volleyball players asked to relocate the poles. At that point, the city discovered that no City permits, as well as, no Coastal Commission permits were issued for this court. The installation of new poles for the volleyball court is considered development and thus a Coastal Development Permit is necessary and thus, the City has submitted an application.

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B. PUBLIC ACCESS Section 30213 of the Coastal Act states, in pertinent part:

Lower cost visitor and recreational facilities shall be protected, encouraged, and, where feasible, provided. Developments providing public recreational opportunities are preferred.

The protection of public access is an important aspect of the Coastal Act. China Cove Beach is large enough to accommodate passive opportunities (i.e. sun bathing) for the public as well active opportunities (i.e. volleyball). The location of the new volleyball court would segment the beach less than the pre-existing, unpermitted court did in its original location and would provide a more practical location that would increase the usable area of the beach. The original location of the volleyball court was to the east adjacent to the residential homes that front China Cove Beach. Thus, both uses can be provided on site and therefore provide public access opportunities for the general public. China Cove Beach is highly used by residents in the area that either walk or bike to the beach. For those that drive from other areas to use this beach, public parking is available on Ocean Boulevard (Exhibit #1), which is located North and above China Cove Beach. There is a stairway from Ocean Boulevard that leads down to the residential area where the beach is located. No public parking opportunities are available within the residential community that surrounds China Cove Beach. However, as stated, public parking opportunities are available on Ocean Boulevard, which is near the beach. Construction of the proposed project may result in adverse impacts to public access of this beach. Therefore, in order to mitigate possible impacts to public access, the Commission has imposed SPECIAL CONDITION NO. 1, which prohibits construction from occurring during the peak use summer season. In addition to the actual construction, construction staging may impact public use of the beach. The applicant has not submitted construction staging plans. Thus, the Commission imposes SPECIAL CONDITION NO. 2, which requires the applicant to submit construction staging plans. CONCLUSION In order to ensure public access to the parks and coastline is not hindered during construction, TWO (2) SPECIAL CONDITIONS have been imposed. SPECIAL CONDITION NO. 1 prohibits construction from occurring during the peak use summer season. SPECIAL CONDITION NO. 2 requires the applicant to submit construction staging plans. Only as conditioned does the Commission find the proposed development is consistent with Sections 30213 and 30252 of the Coastal Act. C. WATER QUALITY Section 30230 of the Coastal Act states:

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Marine resources shall be maintained, enhanced, and where feasible, restored. Special protection shall be given to areas and species of special biological or economic significance. Uses of the marine environment shall be carried out in a manner that will sustain the biological productivity of coastal waters and that will maintain healthy populations of all species of marine organisms adequate for long-term commercial, recreational, scientific, and educational purposes.

Section 30231 of the Coastal Act states:

The biological productivity and the quality of coastal waters, streams, wetlands, estuaries, and lakes appropriate to maintain optimum populations of marine organisms and for the protection of human health shall be maintained and, where feasible, restored through, among other means, minimizing adverse effects of waste water discharges and entrainment, controlling runoff, preventing depletion of ground water supplies and substantial interference with surface water flow, encouraging waste water reclamation, maintaining natural vegetation buffer areas that protect riparian habitats, and minimizing alteration of natural streams.

The protection of water quality is an important aspect of the Coastal Act. Water from the project site will ultimately drain to Newport Bay and the Pacific Ocean. Newport Bay is on the federal Clean Water Act 303(d) list of "impaired” water bodies. The designation as “impaired” means that water quality within the harbor does not meet State and Federal water quality standards designed to meet the 1972 Federal Clean Water Act goal established for this waterbody. The listing is made by the California Regional Water Quality Control Board, Santa Ana Region (RWQCB), and the State Water Resources Control Board (SWRCB), and confirmed by the U.S. Environmental Protection Agency. Further, the RWQCB has targeted the Newport Bay watershed, which would include Newport Harbor, for increased scrutiny as a higher priority watershed under its Watershed Initiative. Recent beach closures occurring throughout Orange County, including those in Newport Beach have been attributed to polluted urban runoff discharging into the ocean through outfalls. As illustrated by these beach closures, polluted runoff negatively affects both marine resources and the public’s ability to access coastal resources. The construction will occur on the beach adjacent to the water. Construction of any kind adjacent to coastal waters has the potential to impact the marine environment. The Bay and ocean provide an opportunity for water oriented recreational activities and also serves as a home for marine habitat. Because of the coastal recreational activities and the sensitivity of the Bay and ocean habitat, water quality issues are essential in review of this project Storage or placement of construction materials, debris, or waste in a location subject to erosion and dispersion or which may be discharged into coastal water via rain, surf, or wind would result in adverse impacts upon the marine environment that would reduce the biological productivity of coastal waters. For instance, construction debris entering coastal waters may cover and displace soft bottom habitat. In addition, the use of machinery in coastal waters not designed for such use may result in the release of lubricants or oils that are toxic to marine life. Sediment discharged into coastal waters may cause turbidity, which can shade and reduce the productivity of foraging avian and marine species ability to see food in the water column. In order to avoid adverse construction-related impacts upon marine resources, SPECIAL

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CONDITION NO. 3 outlines construction-related requirements to provide for the safe storage of construction materials and the safe disposal of construction debris. CONCLUSION To minimize impacts to water quality, ONE (1) SPECIAL CONDITION have been imposed. SPECIAL CONDITION NO. 3 outlines construction-related requirements to provide for the safe storage of construction materials and the safe disposal of construction debris. Therefore, as conditioned, the Commission finds that the proposed development conforms with Section 30230 and 30231 of the Coastal Act. D. LOCAL COASTAL PROGRAM (LCP) Section 30600(c) of the Coastal Act provides for the issuance of coastal development permits directly by the Commission in regions where the local government having jurisdiction does not have a certified local coastal program. Pursuant to Section 30604(a), the permit may only be issued if the Commission finds that the proposed development will not prejudice the ability of the local government to prepare a local coastal program, which conforms with the Chapter 3 policies of the Coastal Act. The LUP for the City of Newport Beach was effectively certified on May 19, 1982. The certified LUP was updated on October 8, 2009. As conditioned, the proposed development is consistent with Chapter 3 of the Coastal Act and with the certified Land Use Plan for the area. Approval of the project, as conditioned, will not prejudice the ability of the local government to prepare a Local Coastal Program that is in conformity with the provisions of Chapter 3. E. CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA) The City of Newport Beach is the lead agency responsible for certifying that the proposed project is in conformance with the California Environmentally Quality Act (CEQA). The City determined that in accordance with CEQA, the project is ministerial or categorically exempt. Section 13096(a) of the Commission's administrative regulations requires Commission approval of coastal development permit applications to be supported by a finding showing the application, as conditioned by any conditions of approval, to be consistent with any applicable requirements of the California Environmental Quality Act (CEQA). Although the proposed development is exempt from CEQA, the Commission has imposed conditions to ensure conformity with Coastal Act requirements. As conditioned, the proposed project is consistent with the water quality, and public access policies of the Coastal Act. Mitigation measures include: 1) adherence to timing of construction and public access; 2) submittal of construction staging plans; and 3) adherence to construction best management practices. As conditioned, there are no feasible alternatives or additional feasible mitigation measures available that would substantially lessen any significant adverse effect that the activity may have on the environment. Therefore, the Commission finds that the proposed project, as conditioned to mitigate the identified impacts, is the least environmentally damaging feasible alternative and consistent with the requirements of the Coastal Act and CEQA.